Docket: CACV2471 The Director under The Seizure of Criminal Property Act, 2009 Prospective Appellant (Applicant) - v. -, 2013 SKCA 113

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 113 Date: 2013-10-29 Between: Docket: CACV2471 The Director under The Seizure of Criminal Property Act, 2009 Prospective Appellant (Applicant) - and - Aaron Tropeau, Cheryl Brinkman and the Chief of Police of the Saskatoon Police Service Prospective Respondents (Respondents) Before: Richards C.J.S. (in Chambers) Counsel: Tammy Pryznyk for the prospective appellant Aaron Tropeau and Cheryl Brinkman appearing on their own behalf Application: From: 2013 SKQB 361 Heard: October 24, 2013 Disposition: Application dismissed

Written Reasons: October 29, 2013 By: The Honourable Chief Justice Richards Richards C.J.S. I. introduction [ 1 ] The Director under The Seizure of Criminal Property Act, 2009 , S.S. 2009, c. S-46.002 (the “ Act ”) seeks leave to appeal a Queen’s Bench Chambers decision which denied his application for the forfeiture of a vehicle registered to the respondent Cheryl Brinkman. The Director’s application was brought pursuant to s. 7 of the Act on the ground that the vehicle had been used in criminal activity. II. background [ 2 ] Ms.

Brinkman and the respondent Aaron Tropeau are common-law spouses. [ 3 ] The vehicle in question (the “Vehicle”) is a 2010 Ford Transit Cargo Van. Ms. Brinkman purchased it in 2010, with money received from her father’s estate. Beginning in January of 2012, she and Mr. Tropeau used it to haul items on an on-call basis. The business averaged $3,000 in profit every month. [ 4 ] In March of 2012, Mr. Tropeau was seen removing copper material from the back of a truck. As a witness approached the scene, Ms. Brinkman (who was sitting in the Vehicle) called out a warning to Mr.

Tropeau. [ 5 ] A second incident occurred on March 29, 2012. Mr. Tropeau was found in the back of a parked truck with rolls of copper in his arms. Ms. Brinkman was also at the scene. When the driver threatened to call the police, Ms. Brinkman and Mr. Tropeau returned to the Vehicle and fled. [ 6 ] A third incident took place in January of 2013. Mr. Tropeau was seen operating the Vehicle near a fenced compound. He entered the compound through a hole in the fence and returned to the Vehicle with two pails full of copper wire. [ 7 ] Mr.

Tropeau pled guilty to three counts of theft under $5,000 and one count of break and enter. He was sentenced to 12 months of probation and 80 hours of community service. Ms. Brinkman was charged with two counts of theft under $5,000. Both charges were ultimately withdrawn but Ms. Brinkman does not deny her involvement in the events of March 21 and March 29, 2012. [ 8 ] Ms. Brinkman is 58 years of age. She suffers from chronic depression and has been diagnosed as “borderline bipolar.” She has been receiving ongoing psychiatric care. She was also diagnosed with a brain aneurysm in March of 2010.

The resulting surgery has left her with both physical and mental limitations. More recently, Ms. Brinkman advises that a cancer problem, formerly in remission, has returned. [ 9 ] Mr. Tropeau is 51 years of age. He also has medical problems. He was admitted to hospital in February of 2013 with necrotizing fasciitis. This has affected his leg strength and left him, he believes, largely unemployable. Nonetheless, he contends that he will be able to operate the haulage business so long as he takes some care. [ 10 ] Ms. Brinkman and Mr. Tropeau indicate that they are dependent on the Vehicle to earn their living.

They say it is their only asset of any value and that, without it, they will be forced to live on social assistance. III. the decision of the chambers judge [ 11 ] The Director brought an application for the forfeiture of the Vehicle pursuant to s. 3(1) of the Act . Section 3(1) reads as follows: 3

(1) The director may apply to the court for a forfeiture order if the director is satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity. [ 12 ] There was no real contest about whether the vehicle was used as “an instrument of unlawful activity” within the meaning of s. 3(1) . As a result, the key issue before the Chambers judge was whether it clearly would not be “in the interests of justice” to make a forfeiture order. In this regard, s. 7(1) of the Act says this:

7(1) Subject to

section 8, and unless it clearly would not be in the interests of justice, the court shall make an order forfeiting property to the Crown if the court finds that the property is proceeds of unlawful activity or an instrument of unlawful activity. [emphasis added] [ 13 ] The Chambers judge canvassed the relevant authorities, including this Court’s recent decision in Saskatchewan (Director, Seizure of Criminal Property Act, 2009) v. Mihalyko , 2012 SKCA 44 , 348 D.L.R. (4th) 756.

He then examined the particulars of the situation before him, noting that the Vehicle had been used in several criminal acts and that the acts in question were planned and deliberate. The Chambers judge also noted that the Vehicle was worth considerably more than the amount of copper involved in the attempted thefts and that the loss of the vehicle would have drastic consequences for Ms. Brinkman and Mr. Tropeau as it is what stands between them and life on the welfare rolls. The judge further observed that, as of the date of his decision, Ms. Brinkman and Mr.

Tropeau had already been without the Vehicle for some nine months because it had been held by the Director pending the outcome of his application. [ 14 ] In the end, the Chambers judge decided not to order the forfeiture of the Vehicle. He wrote as follows: [33] In all the circumstances of this exceptional case, I exercise my limited discretion to refuse forfeiture of the vehicle. In coming to this difficult decision, I fully accept, and agree with, the proposition that exception from forfeiture under s. 7 is to be ordered sparingly and only in rare cases.

After giving this application considerable thought, I have decided this is such a case. Very little public interest would be served by forcing these middle aged and ailing respondents to forfeit their vehicle, and with it their livelihood, as a consequence of three ineptly carried out efforts to steal copper material. To do so, in my opinion, would narrowly cross the threshold of being draconian and manifestly unjust. IV. analysis [ 15 ] The test for granting leave to appeal is well known. It involves consideration of both the merits and the importance of the proposed appeal.

See: Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121. [ 16 ] In this case, the Director submits that the Chambers judge made four errors of consequence in coming to his decision. He says the judge erred by: (

a) considering certain information about the circumstances of Ms. Brinkman and Mr. Tropeau even though that information had been submitted by those two individuals as part of their arguments rather than formally by way of affidavit; (

b) characterizing the evidence of Sgt. Pfeil as having been made on information and belief; (

c) failing to give primacy to the interests of the public and, in particular, failing to consider the need to deter crime, the need to remove the profit from crime and the need to compensate victims; and (

d) taking into account the fact that the vehicle had been been held by the Director for 90 days. [ 17 ] With respect to issues (

a) and (b), I am not persuaded that, in the context of this case, questions of evidence are of sufficient importance to engage the attention of the Court. [ 18 ] With respect to issue (c), I am not at all sure that the Chambers judge overlooked the interests of the public or failed to consider the need to deter crime, undercut the profitability of crime and so forth. He conducted a relatively thorough review of the relevant case law in the course of establishing the framework governing his decision-making. This included Saskatchewan (Director, Seizure of Criminal Property Act, 2009) v. Mihalyko, supra .

Paragraph 7 of his decision would suggest that the judge did consider matters relating to the deterrence of crime. The Chambers judge was also at pains to underline the exceptional nature of his power to deny a forfeiture application. [ 19 ] With respect to issue (d), the Director has raised a point of some interest but I am not convinced that it needs to be explored at this time and in the context of this particular case.

I doubt that the Chambers judge’s decision on this issue will have an especially important precedential impact given that he emphasized s. 7 of the Act is to be engaged “sparingly and only in rare cases” and given his characterization of the facts before him as “exceptional.” [ 20 ] Taking into account both the merits and the importance of the Director’s proposed appeal, I am not persuaded by his arguments about granting leave to appeal. V. conclusion [ 21 ] In the end, this is not a case where, in my view, leave to appeal should be granted. The Director’s application is dismissed.

The Vehicle shall be returned to its owner, Ms. Brinkman. DATED at the City of Regina, in the Province of Saskatchewan, this 29th day of October, A.D. 2013. “Richards C.J.S.” Richards C.J.S.